[1975] 2 NSWLR 614
Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298
Source
Original judgment source is linked above.
Catchwords
[1975] 2 NSWLR 614
Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298
Judgment (36 paragraphs)
[1]
The Applicant submits that the "Respondent's case seems to be that the Consent somehow exhausted the available flexibility in the controls and that any further deviation (no matter how small) is automatically unacceptable." (Applicant submissions in reply, par 4). The exercise with which the Court is tasked is to undertake the statutory focus on the objects of the DCP controls under s 4.15(3A) of the EPA Act. The Applicant submits that "this is a matter that was not apparent to Mr Blue until he was cross examined and is a key reason why the evidence of Mr Turrisi must be preferred." (Applicant submissions in reply, par 4).
The Applicant submits that "the clear and overwhelming probative evidence is that the Proposed Modification either complies with the relevant controls or achieves the objects of the relevant controls" (Applicant submissions in reply, par 5.iii).
I will deal first with character and streetscape. The Respondent's submissions at pars 20 to 22 are that "in this case the primary visual catchment of the site comprises the six properties on the Southern side of Narooma Road between the Woonona Road Corner and the bend at 20 Narooma Road. These properties all have a setback of at least 7.5m from the front boundary, which is free from enclosed structures." (see diagram at Ex 1, p 8). The Applicant seeks rejection of that submission because the Council seeks to reduce the scope of the streetscape "despite such a limitation not being apparent on site nor in its contentions" (Applicant submissions in reply, par 25).
I accept the Applicant's submission and I do not accept Mr Blue's evidence of a 'prevailing and consistent setback on the street' because it runs counter to the Court's observations on 23 October 2023 of varied setbacks and numerous structures forward of the building line (Applicant submissions in reply, par 33). In any event, the Consent is for a double garage forward of the dwelling within the front setback and the Proposed Modification only seeks to modify the approved setback essentially by 100mm.
I am satisfied that the setback is compatible with the character and streetscape which is accurately described by Mr Turrisi in Planning JER (Ex 3) at par 1.3 as having garages and carports built within the front building alignment as free-standing structures that have a varying street setback resulting in a streetscape that is diverse in its form.
Moving on to the perceived bulk, the Respondent submits that the Court should not accept the evidence of Mr Turrisi nor the submissions of the Applicant at [95] that perceived difference between the setback of the Consent and the Proposed Modification is only 100mm because of the proposal to inset the garage door 200mm from the front posts of the garage where those front posts are set back 200mm from the boundary (Ex 3, [1.7] and [2.4]) (Respondent's submissions par 41).
The effect of the Respondent's submission is to question whether the perceived bulk is dictated by the elements of the façade which are furthest forward, namely the post and parapets which are set back only 200mm from the street, or whether the perceived bulk is primarily guided by the door of the double garage within the façade which is setback 400mm from the boundary.
I have considered the Proposed 3D Views DA/510 Rev E (Ex 2, Folio 213, and Ex A, Tab 3) and conclude that the articulation of the double garage door at 400mm from the boundary inset within 200mm of the masonry post and parapets at 200mm from the boundary "reinforces and compliments the architectural language of the existing house, including the detailing which occurs along the front fence" (Planning JER, at par [1.8]). I am not satisfied that the casual observer would perceive additional bulk onto the streetscape from the Proposed Modification and I adopt Mr Turrisi's opinion that "one would not perceive the difference. The corners of the building simply help integrate the built form with the existing house and can only be seen as a positive outcome with little to no consequence." (Supplementary Planning JER, par 2.10).
Considering the opportunity for landscaping, the Respondent submits at par [42] that the Proposed Modification decreases the opportunity for landscaping where the proposal only achieves 70% of the required 50% soft landscaping forward of the building line (Mr Blue's comments in the Table to Contention 1(i)(iv)L, Supplementary Planning JER, Ex 6). As addressed by the evidence of Mr Turrisi at pars 1.12 and 1.13 of the Planning JER, Ex 3, the area behind the garage contributes to landscape character despite not being counted by the control and I accept the Applicant's submission that the "proposal achieves the applicable objects as per 1.13 of the Planning JER" (Applicant submissions in reply, par 27).
The Proposed Modification seeks a pitched roof and storage. Mr Turrisi opines that the higher pitched roof "will be more in keeping with the architectural detailing of the existing house" (Planning JER, par [1.8] - [1.9], Ex 3) whereas Mr Blue's opinion is that a flat roof, in addition to reducing the overall bulk of the garage, will assist in "reading" the garage as an ancillary structure which is separate from the pitched roof form of the house. (Planning JER, par [1.21]).
The Consent has approved a double garage forward of the front setback of the dwelling and having considered the expert opinion evidence of Mr Turrisi and Mr Blue in the context of the site inspection, I am not persuaded that it is preferred to make the garage appear different or ancillary to the dwelling and have a flat roof as opposed to have the garage present in keeping architecturally with the existing dwelling as presented in Drawing DA/520 with a pitched roof.
The final environmental impact consideration is reflected in the Respondent's submission at par [45] that the inclusion of a storage areas increases the width of the garage structure and as described by Mr Blue, "therefore increases both the walling effect on the streetscape, and the ridge height of the roof" (Ex 3, par [1.23]). I have already considered the roof form and height above. The Respondent relies on the front setback control to support the submission that as the Applicant has already been allowed a very substantial departure from the controls by locating a double garage within the front setback "it is not reasonable to further vary the control in order to accommodate additional storage." (Respondent submissions par 45).
The inclusion of storage does not impact the proposed front setback, only the width and roof height. Some alternatives for storage are suggested by the Respondent in written submissions par 46.
In relation to bicycle storage, the Respondent suggests that the bicycles can be transported along the pedestrian pathway, carried upstairs and stored inside the existing dwelling house. I do not accept this as a satisfactory alternative to the safer and convenient access to the garage which is easily accessible from the street and at street level, without having to navigate stairs, and no need to carry the bicycle while navigating narrow pathway and stairs into the house increasing risk of falls and injury or damage. To do so potentially introduces a disincentive to use a bicycle as a means of regular transport. I accept the Applicant's submission that the logical place for bicycles to be stored is in a secure garage with level access at street level.
The width required for the storage of bicycles is the same as the proposed storage space for the charging battery and the bins and as such there is no additional impact resulting from the proposed location of the battery and bin storage.
[2]
I do not find that the impact of the Proposed Modification upon the character of the streetscape is a negative one when compared with the Consent. I accept that the Proposed Garage, as sought to be modified continues to occupy "less than half of the Site frontage, is below the dwelling, and is surrounded by mature landscaping to the west and south" and as the differences are relatively small, the approved garage was "expressly deemed not to be visually dominant by reference to the Statement of Reasons" (Applicant submissions in reply, par 30)
Having considered the environmental impacts as required by s 4.15(1)(b) of the EPA above, I accept that there may be some negligible environmental impacts of the Proposed Modification to the extent that the roof form is different however I conclude that the Proposed Modification is substantially the same and remains compatible with the streetscape character.
[3]
The Respondent filed Proposed/Draft Conditions of Consent on 27 October 2023 at 4.09pm and the Applicant filed Proposed/Draft Conditions of Consent on the same day at 4.15 pm (Ex G). The differences between the 2 versions are:
[4]
(1) the Applicant seeks the simple deletion of condition 2 whereas the Respondent seeks to replace the wording of condition 2 included in the Proposed/Draft Conditions of Consent filed 16 October 2023 (Ex 5) with the following:
" 2. Amendments
Prior to the issue of the Construction Certificate, the proposal is to be amended in the following manner:
(a) Provision of two parking spaces within the garage with minimum dimensions of 5400mmm in length and 2700mm in width. The two spaces are to be immediately adjacent to each other, requiring a total width of no more than 5400mm.
[5]
Reason:
1. To comply with Australian/New Zealand Standard AS/NZS 2890.1:2004 - Off-Street Car Parking (AS 2890.1).
2. To cater for the needs of the applicant/residents in the provision of secure off street parking.
3. To not unnecessarily increase the internal width of the garage and assist in reducing the visual dominance and adverse impact of the garage structure on the streetscape (WDCP 2006 C.4.6 - Performance Criteria 1; WDCP 2023 Part B criteria 3.4.1 b.).
[6]
(b) Provision of a storage corridor with a maximum width of 600mm adjacent the two car spaces on the western side which may be used for the storage of garbage bins and bicycles if required.
[7]
Reason: To meet the storage needs of the applicant/residents.
[8]
(c) Deletion of the solar battery from the garage. Any future installation shall be located in accordance with the manufacturers specifications and the installers recommendations and advice.
[9]
Reason:
To ensure the battery is installed in a safe location and not at risk of damage through collision from a vehicle entering the garage.
[10]
(d) The internal dimension of the garage shall not exceed a maximum dimension of 6000mm, allowing for the provision of two car spaces (2700mm x 2 = 5400mm) and a storage corridor (600mm).
[11]
Reasons:
1. To cater for the needs of the applicant/residents in the provision of secure off street parking and conveniently located storage space.
2. To assist in reducing the visual dominance and adverse impact of the garage structure on the streetscape (WDCP 2006 C.4.6 - Performance Criteria 1; WDCP 2023 Part B criteria 3.4.1 b.).
[12]
(e) A reduction in the width (front elevation) of the garage posts from 400mm to 300mm.
[13]
Reasons:
1. The reduction will be imperceptible to the applicant while retaining the detailing and articulation of the front elevation.
2. To assist in reducing the visual dominance and adverse impact of the garage structure on the streetscape (WDCP 2006 C.4.6 - Performance Criteria 1; WDCP 2023 Part B criteria 3.4.1 b.)
[14]
(f) A reduction in the external width of the front elevation to a maximum of 6600mm, allowing for the internal dimension of 6000mm and two garage posts of 300mm each.
[15]
Reasons:
1. To cater for the needs of the applicant/residents in the provision of secure off street parking and conveniently located storage space.
2. To assist in reducing the visual dominance and adverse impact of the garage structure on the streetscape (WDCP 2006 C.4.6 - Performance Criteria 1; WDCP 2023 Part B criteria 3.4.1 b.)
[16]
(g) A reduction in the in the depth (side elevation) of the garage posts from 400mm to 300mm.
[17]
Reasons:
1. The reduction will be imperceptible to the applicant while retaining the detailing and articulation of the front elevation.
2. To assist in reducing the visual dominance and adverse impact of the garage structure on the streetscape (WDCP 2006 C.4.6 - Performance Criteria 1; WDCP 2023 Part B criteria 3.4.1 b.)
3. To create space to contribute to an increase in the front setback and assist in demonstrating that the garage structure will be the most suitable location and design solution for the site (WDCP 2006 C.4.6 Performance criteria: Locations and design solutions - Control 1).
[18]
(h) A reduction in the internal length of the garage from 5735mm to 5635mm.
[19]
Reasons:
1. The reduction will be imperceptible to the applicant while retaining the detailing and articulation of the front elevation.
2. To retain a car space length that will still be in excess of the minimum required by Australian/New Zealand Standard AS/NZS 2890.1:2004 - OffStreet Car Parking (AS 2890.1).
3. To create space to contribute to an increase in the front setback and assist in demonstrating that the garage structure will be the most suitable location and design solution for the site (WDCP 2006 C.4.6 Performance criteria: Locations and design solutions - Control 1).
[20]
(i) A reduction in the width of the stairs at the rear of the garage from 1000mm to 900mm.
[21]
Reasons:
1. The reduction will be imperceptible to the applicant while retaining the functionality of the stairs.
2. To create space to contribute to an increase in the front setback and assist in demonstrating that the garage structure will be the most suitable location and design solution for the site (WDCP 2006 C.4.6 Performance criteria: Locations and design solutions - Control 1).
[22]
(j) A reduction in the external length of the garage to a maximum of 6135mm, allowing for the internal dimension of 5635mm, the garage post of 300mm and rear wall of 200mm.
[23]
Reasons:
1. To cater for the needs of the applicant/residents in the provision of secure off street parking.
2. To create space to contribute to an increase in the front setback and assist in demonstrating that the garage structure will be in the most suitable location and design solution for the site (WDCP 2006 C.4.6 Performance criteria: Locations and design solutions - Control 1).
[24]
(k) The garage posts shall be setback an additional 300mm (a total of 500mm) from the front boundary, by utilisation of the additional 100mm removed from the depth of the garage posts, the 100mm removed from internal length of the garage and the 100mm removed from the width of the rear stairs.
[25]
Reasons:
1. To cater for the needs of the applicant/residents in the provision of secure off street parking.
2. To ensure that the garage structure will be in the most suitable location for the site (WDCP 2006 C.4.6 Performance criteria: Locations and design solutions - Control 1).
[26]
(l) The roof of the garage shall be amended so that the ridge is no higher than RL 76600.
[27]
Reasons:
1. To ensure the new roof structure does not exceed the height of the existing roof which will ensure the new structure, when viewed from the footpath for a pedestrian approaching the site from the east or west, will not increase the extent to which the street façade of buildings located behind the structure will be concealed (WDCP 2006 C.4.6 Performance Criteria: Location of car parking structures - Control 1.
2. To ensure that the garage structure will be in the most suitable location for the site (WDCP 2006 C.4.6 Performance criteria: Locations and design solutions - Control 1).
[28]
Plans detailing these amendments are required to be shown on the Construction Certificate plans.
(Reason: To minimise the impact on the streetscape and improve pedestrian safety)"
[29]
(2) The Applicant on the other hand deletes condition 2 and includes a condition to install and maintain 3 bollards in the garage to restrict vehicle parking location to the central portion of the garage. This condition is not included in the Respondent's version.
[30]
The Court heard oral submissions on 27 October 2023 that the parties agree on the bollard condition and that the Applicant rejects the new proposed condition 2 relating to the design dimensions of the garage pressed by the Respondent. The Respondent submits that if the proposed condition 2 is in place, it would actually obviate the need for the bollard condition, because the garage would then be of such a width that the cars would not have a lot of choice as to where they parked. The proposed condition 2 sought by the Respondent has a similar function as the Consent however it is drafted by the Respondent to amend the appeal plans of the Proposed Modification, and is described by the Respondent as "minor tweaks to the design, but they would allow the applicant to achieve all of the things that it said it wants to achieve with this design, but in a more modest sized building." (Transcript 27 October 2023, p 7 at par 6).
The Applicant's primary concern with the proposed condition 2 is that it:
[31]
"is a very prescriptive and detailed condition of consent which has come after the evidence, they are details that have not been put to the experts ... and there's no evidence as to whether this would be an appropriate solution. There's no plans that have been prepared, and no swept paths that demonstrate that this would be a functional garage." (Transcript 27 October 2023, p 7 at par 30)
[32]
I accept the Applicant's submission that if the Court were to impose condition 2 as sought by the Respondent "history would repeat itself in that we would have a condition of consent ostensibly for the purpose of minimising the impacts of development shown in approved plans, but which results in an issue in terms of design or functionality, or matters of that nature." (Transcript 27 October 2023, p 7 at par 40).
The wording in the Applicant's Proposed/Draft Conditions of Consent (Ex G) is agreed to by the Respondent in the event that the Court does not impose the condition 2 sought by the Respondent. I do not propose to entertain any further design changes as sought by the Respondent's condition 2 firstly, because I have made findings that the Proposed Modification does not result in environmental impacts sufficient to warrant the refusal and secondly, for the reasons given by the Applicant, namely that the Court has no evidence before it from the experts regarding the functionality of those design changes. Accordingly, I conclude that the Proposed Modification can be approved subject to the conditions in Ex G.
[33]
(1) The appeal is upheld.
(2) Development Consent No. DA-2022/314 is modified in the terms in Annexure A.
(3) Development Consent No. DA-2022/314 as modified by the Court is Annexure B.
04 April 2024 - Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the "slip rule") by request of the Applicant, and with the consent of the Respondent, Condition 36 of Annexure A and B is amended to read as "403.15m2" when referring to the impervious area to be consistent with the site calculations drawing 03 Rev E dated 27 February 2023.
Parties
Applicant/Plaintiff:
McKenna
Respondent/Defendant:
Willoughby City Council
Legislation Cited (5)
Planning and Assessment Act 1979
Environment Court Act 1979
Planning and Assessment Regulation 2021
Environmental Planning and Assessment Regulations 2021
Civil Procedure Rules 2005
Cases Cited (10)
Judgment
COMMISSIONER: This is a Class 1 Development Appeal pursuant to s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) being an appeal against the refusal of Modification Application No DA-2022/314/A to modify the terms of consent condition 2 of DA-2022/314 for partial demolition of existing double carport to be replaced with new double garage, external stairs, new front fence, new entry path and gate, and associated works (the Proposed Modification) at 26 Narooma Road, Northbridge NSW 2063 legally described as Lot 39 in DP9126 (the Site).
This case is about the setback and size of the approved double garage as opposed to the setback and size of the double garage sought in the Proposed Modification. A copy of the approved plans is in evidence (Ex 2 tab 7) which show a garage 6430mm long and 7205mm wide, with nil setback to the front boundary and a garage door 5m wide flush with the front posts of the front garage wall. The stamped plans also show a storage area 950mm wide on the western side of the garage which has a pitched roof with a ridge height of RL 77915. An extract of Drawing DA/110 is reproduced below at Fig 1.
Fig 1: Extract of Drawing DA/110 Proposed Garage Rev C (Ex 2, Tab 7, folio 182)
Condition 2 of DA-2022/314 (the Consent) provides as follows:
"2. Amendments
Prior to the issue of the Construction Certificate, the proposal is to be amended in the following manner:
(a) The garage structure including the roller door and all associated walls and piers shall be set back 500mm from the front boundary.
(b) The roof of the garage shall be amended so that it is a flat roofed structure with a ridge no higher than RL 76600.
(c) The internal length of the garage and the width of the path behind the garage to be reduced (path reduced if required) to achieve the 500mm front set back. Minimum internal garage length to be 5.7m.
(d) The storage area within the garage is to be deleted with the western side garage wall being shifted towards the eastern boundary so the external width of the garage does not exceed 6.4m, and the internal width does not exceed 6m. The area where the garage has been reduced shall be replaced with soft landscaping.
(e) The soft landscaping forward of the dwelling building line shall be increased by 6m2, to be 50m2 by the deletion of some of the proposed paving and reduction of the width of the garage.
Plans detailing these amendments are required to be shown on the Construction Certificate plans.
(Reason: Ensure compliance)"
The Applicant seeks to persuade the Court that the modification of the consent condition 2 should be approved by deleting condition 2 of the Consent and approving the amended plans. This would have the effect of approving an enclosed two-car garage with a pitched roof and double garage on the Site. The garage door would be setback 400mm from the front boundary, rather than the 500mm imposed by the Consent, and the garage would be widened from 6.4m to 7.1m for the purposes of storage of bikes, bins and electric vehicle charging infrastructure. I reproduce at Fig 2 an extract of the proposed amended garage Drawing DA/110 Rev E (Ex 2, Tab 9A, folio 206):
Fig 2: Extract of Drawing DA/110 Proposed Garage Rev E (Ex 2, Tab 9A, folio 206)
The Court arranged a conciliation conference under s 34AA(1)(a) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 23 October 2023. I presided over the conciliation conference and as the parties were unable to reach an agreement the conciliation conference was terminated and the hearing of the appeal proceeded forthwith.
The proceedings commenced on site. There were no objectors on site and the parties took the court to view the local area. The parties agree that the evidence on site during the conciliation conference is to be considered for the hearing.
The matter was part heard on day 1 of the proceedings and adjourned to Friday 27 October 2023 and the parties were directed to file and serve written submissions and Draft/Proposed Conditions of Consent prior to 27 October 2023.
The Respondent's case is set out in the Statement of Facts and Contentions (SOFAC) filed 9 May 2023 (Ex 1) and the contentions that the Respondent submits warrant the refusal of the Proposed Modification relate to impacts on the built environment and that there are reasonable design modifications available. The two remaining contentions are expressed as follows:
1. The Proposed Modification is not compatible with the character of the built environment;
2. Condition 2 of the Consent requires reasonable and achievable design changes to reduce the impact of the proposed garage on the streetscape.
Expert evidence was provided to the Court by way of Joint Expert Traffic Report prepared by civil engineers Paul Corbett for the Applicant and Clare Woods for the Respondent (Traffic JER) (Ex 4). Expert Town Planners Anthony Blue for the Respondent and Gerard Turrisi for the Applicant prepared a Planning Joint Expert Report (Planning JER) (Ex 3) and a Supplementary Planning Joint Expert Report (Supplementary Planning JER) (Ex 6).
The expert civil engineers considered sight lines prepared by Mr Corbett annexed to the Traffic JER and agree that "improved (increased) sight lines will be provided to pedestrians under the proposed garage compared to the approved garage if the vehicles are parked in the positions noted on the plans." (par 18, Ex 4). And Ms Woods does agree that the wider garage door does result in improved sight lines in one direction and a safer arrangement for pedestrians compared to the DA-2022/314 consent if vehicles are parked in the positions indicated in the plans. (par 19, Ex 4). Ms Woods was concerned to ensure that a "non-moveable structure is provided to prevent a vehicle parking closer to the wall" (par 24 and 30, Ex 4) and the Applicant has agreed to a condition of consent.
Accordingly, the contention regarding pedestrian safety is no longer pressed by the Respondent (Respondent written submissions par 47) except to the extent that "pedestrian safety considerations do not justify the departures from the planning controls involved in the Modified Proposal".
The Respondent submits that although the differences between the Consent and the Proposed Modification are "relatively small" the appeal should be dismissed because "the planning evidence establishes that the Modified Proposal will have a worse impact than the Approved Proposal" and because "it crosses the line between a reasonable resolution of the applicant's request for a double garage on the property, and an unreasonable resolution." (par 52 and 53).
The Applicant submits that in upholding the appeal, the Court would find that the Respondent has fundamentally misapplied the relevant planning controls. In particular, the Applicant submits that the Respondent has:
1. not applied the controls through the lens of s 4.55 of the EPA Act given that this is a modification application, and the proposal must be understood in comparison to the Consent;
2. not amended its contentions to address the Willoughby Development Control Plan 2023 (2023 WDCP) that came into effect on 4 October 2023 without any savings and transitional provisions (Ex 2, tab 5); and,
3. pressed the provisions of the Willoughby Development Control Plan 2006 (2006 DCP) despite those provisions having no application as at the time of the hearing date, contrary to longstanding authority in Sofi v Wollondilly Shire Council (1975) 31 LGRA 416; [1975] 2 NSWLR 614 and as applied recently by Preston CJ in Tomasic v Port Stephens Council [2021] NSWLEC 56.
On the key merit issues, the Applicant submits that the Court would find:
1. it is not in dispute that it is reasonable to provide an enclosed structure to provide security for the landowners' cars;
2. from a pedestrian safety perspective, there is uncontested evidence that the Modification Application involves an improved outcome when assessed against the garage approved under the Consent;
3. there are no environmental impacts or traffic issues associated with the Modification Application particularly when compared against the Consent;
4. there are ultimately no applicable planning controls that are the subject of the contentions that the Modification Application does not comply with. The Court would accept Mr Turrisi's evidence that the Proposed Garage achieves the objects and satisfies the controls of the new 2023 WDCP.
The Respondent does not contend that the Proposed Modification does not satisfy the jurisdictional prerequisite that the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all) (s 4.55, EPA Act).
Section 4.55(2) of the EPA Act provides that a consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
(a) it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and
(b) it has consulted with the relevant Minister, public authority or approval body (within the meaning of Division 4.8) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and
(c) it has notified the application in accordance with -
(i) the regulations, if the regulations so require, or
(ii) a development control plan, if the consent authority is a council that has made a development control plan that requires the notification or advertising of applications for modification of a development consent, and
(d) it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.
The Modification Application was not notified pursuant to the Respondent's Community Participation Plan (WCC Community Participation Plan) because the authorised officer of the Respondent formed the opinion that this was not required in accordance with the WCC Community Participation Plan.
The Proposed Modification seeks to delete condition 2 of the Consent which requires design changes to the approved plans. The Consent was for a two-car garage that is ancillary to a dwelling house. The Proposed Modification as amended is also for a two-car garage that is ancillary to a dwelling house. The threshold question is whether or not the proposed modification represents a "substantially the same" development.
The Applicant refers to the "relevant tests" set out in the cases of Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 and Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8. Since those decisions Preston CJ has outlined the test for s 4.55 of the EPA Act in Arrage v Inner West Council [2019] NSWLEC 85 (Arrage) and then again more recently in Feldkirchen Pty Ltd v Development Implementation Pty Ltd (2022) 254 LGERA 114; [2022] NSWCA 227 (Feldkirchen).
I reproduce some relevant extracts from Arrage at [26] to [28] below as follows:
"26 The choice of language in the judicial decisions of "material and essential features" or a "material and essential physical element" of the development (see, for example, Moto Projects at [58], [59] and [64]) derives from judicial interpretations of the statutory test that the modified development be "substantially the same" development as the originally approved development. In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, p 2 Stein J interpreted the word "substantially" in the former s 102(1)(a) of the EPA Act to mean "essentially or materially or having the same essence". That interpretation of the word "substantially" was accepted in North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 475 by Mason P (with whom Sheppard AJA agreed at 403) and at 481-482 by Stein JA and in Moto Projects by Bignold J at [30] and [55].
27 This interpretation of the statutory test that the modified development be substantially the same development as the originally approved development, that the modified development be "essentially or materially" the same or "having the same essence" as the originally approved development could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry.
28 That is one way, probably in most cases the most instructive way, to identify whether the modified development is substantially the same development as the originally approved development, but it is not the only way to ascertain whether the modified development is substantially (in the sense of essentially or materially) the same development as the originally approved development."
Further, from Arrage at [31] it is clear that "under s 4.55(2), the consent authority must form the positive opinion of satisfaction that the modified development is substantially the same development as the originally approved development."
The decision of Feldkirchen includes the following at [112]:
"112 The comparison required by s 4.55(2)(a) is simply between two developments: the development as modified and the development as originally approved: Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [16] and Arrage v Inner West Council [2019] NSWLEC 85 at [24]. Case law on the precondition, both in earlier statutory provisions, such as s 102(1), and the current statutory provision of s 4.55(2), has suggested ways in which this comparison between the two developments might beneficially be undertaken. This includes identifying and comparing the "material and essential features" of the two developments: Moto Projects (No 2) Pty Ltd v North Sydney Council at [55], [56] and [58] and Arrage v Inner West Council at [26]. These suggested ways of undertaking the comparison between the two developments, however, do not displace the statutory test in s 4.55(2)(a) or demand that the required comparison be undertaken in those ways: Arrage v Inner West Council at [27], [28]."
The Applicant submits that:
"The Court as consent authority must be satisfied and make a finding that the modified development is "essentially" or "materially" the same as the (currently) approved development. This requires a consideration of both the quantitative and qualitative elements of the proposed amendments, considering the general context in which the development was approved, and in particular, relationships to neighbouring properties and aspects of the development that were of importance to the consent authority when granting the original approval."
Having considered the description above at par [12], the drawings at Fig 1 and Fig 2 above and the summary statistics tables at par 7 of the SOFAC and par 7 of the SOFAC in Reply (Ex B), the Court is satisfied that the threshold jurisdictional pre-requisite is satisfied and finds that the modified development is substantially the same development as the originally approved development, and on that basis, is legally capable of being approved.
Section 4.55(3) provides that in determining an application for modification of a consent under s 4.55, the consent authority:
"must take into consideration such of the matters referred to in section 4.15(1) as are of relevance to the development the subject of the application. The consent authority must also take into consideration the reasons given by the consent authority for the grant of the consent that is sought to be modified."
In relation to the reasons given for the grant of the Consent, these are included at Exhibit 2 p 180A and are that:
"1. Subject to conditions, the proposed development is consistent with the objectives of the zone under WLEP 2012 / WLEP 2020.
2. Subject to conditions, the proposed development complies with the development standards under WLEP 2012 / WLEP 2020. 3. Subject to conditions, the proposed development complies with the objectives of WDCP.
4. Subject to conditions, the proposed development will not have a significant impact on the existing streetscape or compromise the natural and scenic qualities of the locality.
5. Subject to conditions, the proposed development will not have significant or unreasonable impacts on the residential amenity of adjoining or nearby properties. 6. It is considered that any adverse effects to the present and likely future amenity of the locality are not of such an extent as to warrant refusal of the application."
The parties agree that the Court can approve the Modification Application taking into consideration the Statement of Reasons.
The final step is to take into consideration such of the matters referred to in s 4.15(1) of the EPA Act, which is also often referred to as the merit assessment of a modification application.
The relevant environmental planning instruments have been taken into consideration as required by s 4.15(1)(a)(i). The relevant local environmental planning instrument is the Willoughby Local Environmental Plan 2012 (WLEP). Development for the purposes of a dwelling house is permissible in the zone and the proposed garage is ancillary to that purpose. The Court can approve the Modification Application having regard to the objectives of the zone, although I note that cl 2.3 of the WLEP applies to the determination of a development application and that the proceedings before the Court is for approval to modify a consent which is not a development application (s 4.55(4), EPA Act).
There are no draft or proposed environmental planning instruments, including local environmental plans, that are or have been the subject of public consultation for the purpose of s 4.15(1)(a)(ii).
The Court is to take into consideration "any development control plan" (DCP) pursuant to s 4.15(1)(a)(iii). At the time the Consent was granted, WDCP 2006 was in force and applied to the Site. However, prior to the hearing of this appeal and after the completion of the Planning JER, WDCP 2023 commenced on 4 October 2023 without any savings provisions.
The Respondent accepts that the WDCP 2023, currently in force for the Site is the relevant DCP because the WDCP 2023 does not have any savings provision and the Court is required to determine the application based on the law as it applies at the time of the decision and the Respondent relies on the decision of Preston CJ in Tomasic v Port Stephens Council [2021] NSWLEC 56.
The SOFAC only references the WDCP 2006. The Applicant submits that it "did not know the Respondent's position on the WDCP 2023 until its submissions commenced at the hearing." (Applicant submissions in reply, par 20). The Respondent submits that this is relevant to the extent that the controls relied on in the Council's particulars of the Contentions in the SOFAC have been repealed and replaced by new equivalent controls, however the Respondent submits that "the coming into force of the new DCP did not change the substance of the Council's contentions, and the Council has not sought to rely on any control in DCP 2023 which imposes a more stringent standard than DCP 2006." (Respondent's closing submissions, par 16).
The Respondent submits that in the present case, WDCP 2006 is entitled to even greater weight because it is indicative of the standards which were in force when the Consent was granted, which informed the decision to impose Condition 2. "It is therefore relevant both as an aspect of the public interest (s 4.15(1)(e)), and because it informed the Council's reasons for the grant of the Consent which is sought to be modified" (Respondent's closing submissions, par 14).
I accept that the substance of the Respondent's contentions have not changed and I accept that the provisions of both DCPs have been taken into consideration in the evidence (Ex 3 and Ex 6). Neither of the planning experts have said that their assessment of the application has been changed materially by the coming into force of the WDCP 2023, although the applicant's planner refers to at least one control in WDCP 2023 which he says favours the grant of the application (Ex 6 at comment 14, final page). For these reasons, I find that consideration of one or the other DCP is not determinative of whether to approve the Proposed Modification. I come back to the DCP considerations in the merit assessment below in the context of the contentions pressed by the Respondent.
I am satisfied that all relevant regulations have been considered as required by s 4.15(1)(a)(iv).
The Modification Application was not notified pursuant to the Respondent's Community Participation Plan (WCC Community Participation Plan) because the authorised officer of the Respondent formed the opinion that this was not required in accordance with the WCC Community Participation Plan.
The Proposed Modification seeks to delete condition 2 of the Consent which requires design changes to the approved plans. The Consent was for a two-car garage that is ancillary to a dwelling house. The Proposed Modification as amended is also for a two-car garage that is ancillary to a dwelling house. The threshold question is whether or not the proposed modification represents a "substantially the same" development.
The Applicant refers to the "relevant tests" set out in the cases of Moto Projects (No 2) Pty Ltd v North Sydney Council(1999) 106 LGERA 298; [1999] NSWLEC 280 and Vacik Pty Ltd v Penrith City Council[1992] NSWLEC 8. Since those decisions Preston CJ has outlined the test for s 4.55 of the EPA Act in Arrage v Inner West Council[2019] NSWLEC 85 (Arrage) and then again more recently in Feldkirchen Pty Ltd v Development Implementation Pty Ltd(2022) 254 LGERA 114; [2022] NSWCA 227 (Feldkirchen).
I reproduce some relevant extracts from Arrage at [26] to [28] below as follows:
"26 The choice of language in the judicial decisions of "material and essential features" or a "material and essential physical element" of the development (see, for example, Moto Projects at [58], [59] and [64]) derives from judicial interpretations of the statutory test that the modified development be "substantially the same" development as the originally approved development. In Vacik Pty Ltd v Penrith City Council [1992] NSWLEC 8, p 2 Stein J interpreted the word "substantially" in the former s 102(1)(a) of the EPA Act to mean "essentially or materially or having the same essence". That interpretation of the word "substantially" was accepted in North Sydney Council v Michael Standley & Associates Pty Ltd [1998] NSWSC 163; (1998) 43 NSWLR 468 at 475 by Mason P (with whom Sheppard AJA agreed at 403) and at 481-482 by Stein JA and in Moto Projects by Bignold J at [30] and [55].
27 This interpretation of the statutory test that the modified development be substantially the same development as the originally approved development, that the modified development be "essentially or materially" the same or "having the same essence" as the originally approved development could support an inquiry to identify the material and essential features of the originally approved and modified developments in order to undertake the comparative exercise required, but it does not demand such an inquiry.
28 That is one way, probably in most cases the most instructive way, to identify whether the modified development is substantially the same development as the originally approved development, but it is not the only way to ascertain whether the modified development is substantially (in the sense of essentially or materially) the same development as the originally approved development."
"112 The comparison required by s 4.55(2)(a) is simply between two developments: the development as modified and the development as originally approved: Scrap Realty Pty Ltd v Botany Bay City Council (2008) 166 LGERA 342; [2008] NSWLEC 333 at [16] and Arrage v Inner West Council [2019] NSWLEC 85 at [24]. Case law on the precondition, both in earlier statutory provisions, such as s 102(1), and the current statutory provision of s 4.55(2), has suggested ways in which this comparison between the two developments might beneficially be undertaken. This includes identifying and comparing the "material and essential features" of the two developments: Moto Projects (No 2) Pty Ltd v North Sydney Council at [55], [56] and [58] and Arrage v Inner West Council at [26]. These suggested ways of undertaking the comparison between the two developments, however, do not displace the statutory test in s 4.55(2)(a) or demand that the required comparison be undertaken in those ways: Arrage v Inner West Council at [27], [28]."